Hon Justice T. A. Oyeyemi (Rtd) & Ors V. Hon Timothy Owoeye & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment)

Sometime in March, 2009, the Governor of Osun State appointed the first-seventh appellants as Chairman, Secretary and Members, respectively, of the Osun State Independent Electoral Commission (OSSIEC). Their names were forwarded to the defendant/respondent for confirmation.

On March 24, 2009, the appellants appeared before the defendants/respondents for screening for the purpose of confirming their said appointments. It appears that some of the appellants did not supply the defendant/respondent with enough copies of their credentials. That notwithstanding, by majority votes of its members, the defendant/respondent confirmed their appointments. The Governor, subsequently, swore them in on April 3, 2009.

The claimant/first respondent was dissatisfied with the procedure which the defendant/respondent adopted in confirming the appointments of the appellants. This prompted the action he commenced by way of Originating Summons in Suit No: HOS/M41/2009 – Hon Timothy Owoeye v Osun State House of Assembly. In its judgment of February 25, 2010, the lower court [Coram Falola, J.] favoured him with the three reliefs he claimed.

Aggrieved by that judgment, the defendant/respondent appealed. It also beseeched the lower court with an application for an order for stay of execution of the said judgment. In addition, it, subsequently, gave notice of the withdrawal of the appeal. Thereafter, fresh invitations were issued to the appellants in March 2010 to appear before the defendant/respondent for a fresh screening and confirmation exercise. On March 30, 2010, the defendant/respondent, by majority votes of its members, confirmed the appointment of the appellants. The Governor of the State swore them in on April 1, 2010.

The Claimant/first respondent repaired to the forensic trenches and triggered off another suit [Suit No HOS/M70/2010 -Hon Timothy Owoeye v Osun State House of Assembly]. In the new suit, he contested the validity of the Notice of Withdrawal of the appeal [against the judgment in suit No: HOS/M41/2009 Hon Timothy Owoeye v Osun State House of Assembly]. The principal plank on which the latter suit [Suit No HOS/M70/2010- Hon Timothy Owoeye v Osun State House of Assembly] was anchored was non-service of the said Notice of Withdrawal on him.

In a nut shell, he contended that the said Notice was ineffectual and incapable of terminating the appeal because it was incompetent for want of service. In effect, he canvassed the position that both the appeal and application for stay of execution were still extant. As such, the above re-screening exercise was irregular and an abuse of court process. After hearing the parties, the lower court [Coram Falola, J.] agreed with the claimant that the Notice of Appeal against Suit No: HOS/M41/2009 – Hon Timothy Owoeye v Osun State House of Assembly was still subsisting.

The court invalidated the said Notice of Withdrawal and granted all the reliefs claimed. It made an additional order dissolving the Board of OSSIEC and directed the appellants to vacate their offices. The present appeal is a protest against the said judgment in suit No HOS/M70/2010 – Hon Timothy Owoeye v Osun State House of Assembly. From their six grounds of appeal, they formulated six issues for the determination of this appeal. They were framed thus:

1. Whether the learned trial judge was right in his decision that the Notice of Withdrawal of Appeal filed by the Defendant/Respondent to withdraw the appeal it hitherto filed against the decision of the lower court in suit HOS/M.41/2009, cannot terminate the appeal, and being in confrontation with Order 11 Rules 1, 2 and 4 of the Court of Appeal Rules.
2. Assuming without conceding that the Notice of Appeal filed by the Defendant/Respondent against the judgment of the lower court in suit HOS/M.41/2009 was still pending as at 30th March, 2010, when the re-screening of the Appellants by the Defendant/Respondent took place, whether the learned trial judge was right in using the fact to nullify the re-screening, when the re-screening was in obedience to the ratio decidendi of the judgment of the lower court in suit HOS/M.41/2009 by the Defendant/Respondent and there is no law or procedure that a person against whom a judgment has been given cannot comply with it in the pendency of an appeal…
3. Whether the learned trial judge was right in giving judgment and making orders against the Appellants who were not parties to the suit before him.
4. Whether the proceedings of the lower court and the orders made therein by the learned trial judge have not infringed on the Appellants right to fair hearing.
5. Whether the learned trial judge was right in making orders in his judgment that was not part of the reliefs sought by the Claimant/Respondent in the Originating Summons before the court”.
6. Whether the learned trial judge was right in entertaining the suit and giving his judgment when the proper parties are (sic) not before him.

ARGUMENTS OF THE PARTIES

ISSUE 1

Whether the learned trial Judge was right in his decision that the Notice of Withdrawal of Appeal filed by the defendant/respondent to withdraw the appeal it hitherto filed against the decision of the lower court in Suit HOS.M41/2009 cannot terminate the appeal, and being in confrontation with Order 11 Rules 1, 2 and 4 of the Court of Appeal Rules.

APPELLANTS’ SUBMISSIONS

Counsel for the appellants, first, explained that Suit No HOS/M.70/2010, now on appeal, is an offshoot of the judgment in Suit No HOS/M.41/2009 between the claimant/respondent and the defendant/respondent. He further explained that, although the defendant/respondent had appealed against the judgment, it later applied for the withdrawal of the appeal by filing a Notice of Withdrawal at the Registry of the lower court. According to him, by the time of filing of the said notice of withdrawal, the records in suit No HOS/M.41/2009 had not been compiled and hence the appeal had not been entered at the appeal court.

He contended that the defendant/respondent intended to withdraw the appeal and had effectuated its intention by, formally, filing a notice of withdrawal of that appeal against Suit No HOS/M.41/2009 at the lower court. In his view, the filing of the notice of withdrawal of the appeal effectively terminated the said appeal against Suit No HOS/M.41/2009, citing Ezomo v AG, Bendel State [1986] 4 NWLR (pt 36) 448.